Status quo prevails. A Tennessee update

I am still Roadshowing this week, among other things, so I will again offer some content but with a caveat about its brevity.  (And, again, if you are sitting in a highly-entertained crowd looking for the embedded Spotify playlist just keep scrolling and you’ll find it.)

In the before time, the long, long-ago at this space (right before Xmas 2016 actually), I previously mentioned how Tennessee is a jurisdiction that does not toll the statute of limitations for legal malpractice actions based on the continuing representation of counsel.  When I did so, I managed to offer a contradictory take from the “Hot List” folks in Tennessee in terms of predicting how the Tennessee Supreme Court would rule in the Story v. Bunstine case.  (Admittedly though, I did flagrantly misspell Bunstine in the process back then.)

For the uninitiated, that whole “continuous representation” concept of tolling  just means that the mere fact that a lawyer continues to represent a client does not mean that the client’s time frame for filing suit over alleged legal malpractice does not start running.  For more than 20 years in Tennessee, the way we have dealt with the accrual of the cause of action involves application of the widely-familiar “discovery rule” approach.

For more than 20 years, our state has also operated under guidance providing that, if for some reason [for example, the potential that a mistake or misstep in the underlying action might be fixable and, thus, what seems like a very damaging outcome in the present could be the kind of situation in the future that everyone involved might laugh about] it is awkward to pursue the legal malpractice lawsuit while the lawyer is still trying to remedy the error, then the manner of addressing the situation is to file the legal malpractice action in a timely fashion (within 1 year of the problem) and ask the Court to stay that lawsuit until the underlying suit is completed.

Yesterday, the Tennessee Supreme Court ruled in Story v. Bunstine in which the plaintiff’s counsel explicitly asked the Court to undo that long-settled approach in favor of either the tolling for continuous representation or even the “appeal tolling” doctrine.  I am happy to report in this space that the Court — in a very well-written and thorough opinion, rejected those calls for change and re-affirmed the status quo as to accrual of a cause of action for legal malpractice.

If I had to pick one portion to be the simplest portion of Justice Page’s opinion for the Court that drives home what matters, I’d go with this one:

Based on the foregoing, we conclude that our formulation of the discovery rule articulated in Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995), and again in John Kohl &
Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528 (Tenn. 1998), remains the appropriate analysis for determining when a claim of legal malpractice accrues. Accordingly, we decline to adopt the two tolling doctrines proposed by Plaintiffs—the continuing
representation rule and the appeal-tolling doctrine—and also decline to hold that a final judgment is required before there is an actual injury for purposes of accrual.

You can read the full opinion, should you so desire, at the link set out above.

“Boies will be boys was never a good response” or “Advance waivers are still better than unwanted advances”

(I’ve apologized once before for a Bullwinkle-style title and here I am doing it again.  The underlying societal issues are not funny in the least but it’s been a hard week for many folks and a little bit of levity can help you make it through.)

If you are inclined to read this blog from time to time, then you likely already have read or heard something about the mess David Boies has found himself in related to his firm’s simultaneous representation of The New York Times and his efforts to assist another client Harvey Weinstein in working with a black-ops style investigation outfit to try to stop an NYT story about Weinstein.

If you haven’t read anything about it, there is a wave of reporting to catch up on.  You can start with this ABA Journal article which gives easy jumping off points to this article in The Atlantic, and this The New York Times article, and this further ABA Journal article addressing additional issues after the NYT fired Boies’s firm.

The whole situation weaves a tale more than worthy of a law school essay exam question.  I could likely manage to spend the full three hours of the Ethics Roadshow talking about the ethics issues raised in the scenario.  (I probably won’t, but you’ll never know for sure unless you attend in one of the six cities where it will be taking place.)

While there are quite a few angles ripe for discussion, I just want to talk a bit today about the advanced waiver angle involved.  As most of the articles discuss, in addition to minimizing his role in assisting Weinstein, Boies pointed to language in his firm’s engagement letter with the NYT as authorizing certain conflicts in advance.

The topic of whether and when a lawyer can obtain an advanced waiver from a client to a future conflict is still a surprisingly controversial one in ethics and lawyering circles.  There are some who ardently fight for the position that no conflict can be waived in advance, even by sophisticated clients.  I don’t count myself among their number and, instead, believe that the availability of advance conflicts waivers is an important part of modern law practice from an ethics standpoint.  Along those lines, I believe that Tennessee, and other states that have language in a Comment to RPC 1.7 patterned after the Model Rules get the ethical guidance on the situation correct.

Tennessee’s Comment [22] to RPC 1.7, for example, explains how things generally should work when a lawyer requests a client to waive conflicts that might arise in the future:

The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.  The more comprehensive the explanation provided to the client of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding.  Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict.  If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.  Nevertheless, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent to a future conflict is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject matter of the representation.

This Boies/Weinstein/NYT saga, however, isn’t particularly all that helpful in terms of providing guidance into the question of whether any advance conflict waiver obtained by Boies complied with New York’s ethics rules, but it is extremely helpful in reminding that whether or not an advance conflict waiver passes muster under the ethics rules is just one aspect of the situation that lawyers and law firms need to keep in mind (and though it is a bit sacrilegious to say it might not always be the most weighty aspect of the situation).

The Boies/Weinstein/NYT saga is extremely helpful as a reminder that whether to take on a representation that can only be justified to another client on the basis of an advance waiver is extremely tricky as a business decision.

Boies’s firm included an advance waiver in its engagement letter with the NYT undoubtedly to try to maximize the number of clients it could have has now managed to lose both the NYT and Weinstein as clients.

The loss of Weinstein under all the circumstances might be a net positive, but the loss of the NYT likely stings and would have stung even if it hadn’t ended up managing to say this publicly in the process of cutting ties with Boies:

We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.

Whether or not an advance waiver is consistent with the ethics rules, an offended client can always still decide to drop the lawyer or his firm and what that mess might looks like if or when that comes to pass might be the most practical way for lawyers to think through these issues.

 

A patchwork post for your Friday

Today’s content will be an original recipe of (1) part shameless self-promotion; (2) two parts serious recommendations to read the writings of others; and (3) pop culture recommendations for your downtime this weekend.

First, the shameless.  I am pleased to announce the plan for this year’s Ethics Roadshow.  Here’s the promotional piece you will soon see making the rounds to explain this year’s endeavor.

This is the 13th year that Brian Faughnan is performing the Ethics Roadshow for the TBA, but that is NOT actually the reason for the “13 Reasons Why” title.  This year’s program “Ethics Roadshow 2017 The Mixtape:  Thirteen Reasons Why Ethics Issues are More Complicated Than Ever.” is so-titled because of the presenter’s slavish devotion to being influenced by pop culture.

This past year, a highly controversial show largely about teen suicide and its consequences aired on Netflix.  “13 Reasons Why,” was based on a much less controversial book but the series was heavily criticized for – among other things – violating the “rules” in the world of television for how (and how not) suicide is to be depicted.  Questions, of course, exist about whether such rules are outdated in a day and age when it is as easy as surfing the Web for someone, even a teenager, to find such information.

Questions also exist in modern law practice about whether certain ethics rules are outdated, and we will spend some time talking about that issue and related topics.  We will also discuss the problems with substance abuse, stress, and mental health issues that plague our profession and put our members at risk of self-harm at rates much higher than the general population and other professions.)  The outdated technology of audiotape also plays a significant role in the Netflix series.  (It is also making something of a comeback in the music industry.)  We will spend time talking about the ethical obligations of lawyers when it comes to use of technology and whether some of those obligations and the risks of modern technology might create an incentive for lawyers to make use of some outdated technology in the future as a way of better protecting client information.

And, we will cover it all in a format that had its heyday when cassette tapes were king – the “mixtape.”  Your presenter will curate the order of topics for you with any eye toward your three-hour listening experience.

If you are a Tennessee lawyer (or a lawyer who practices in a nearby state) interested in attending, all of the stops will take place in December 2017 and you can find them and register for them at these links: Memphis, Nashville, Knoxville, and Chattanooga. You can also register for video broadcasts of the program in Jackson and Johnson City.

In terms of reading recommendations, go check out yesterday’s post from Karen Rubin over at The Law for Lawyers Today on a follow up to an issue I’ve written about – the problems with protecting client confidentiality in a world in which border agents are demanding access to electronic devices and their contents.  Karen writes about a lawsuit filed by an organization near and dear to me that is challenging the practice.  Also go check out the latest blogpost from Avvo’s General Counsel, Josh King, about the intersection of First Amendment issues and the issuance of ethics opinions.  While I don’t know the details of the discussion at a New York event he references, I do know some of the players that were there and I can’t help but wonder if what Josh is interpreting as a bad take on the issue of constitutional challenges and certain concepts being settled actually stems from a more fundamental disagreement about whether saying lawyers cannot pay referral fees to non-lawyers is actually a restriction on commercial speech at all.  If not, then it doesn’t require intermediate scrutiny in terms of any First Amendment challenge but is merely reviewed on a rational review basis.  And, I’m guessing the point someone was trying to make was that others have tried and readily failed to say that states don’t have a sufficient interest in regulating the practice of law to prevent letting lawyers pay non-lawyers for making referrals.

Finally, recommendations for a more pleasurable way to spend your weekend. If you happen to have Netflix, I actually do (albeit sheepishly) recommend checking out the 13 Reasons Why series.  Less sheepishly, as to the efforts to bring the mixtape concept back, I wholeheartedly recommend exploring some of the online mixtapes that Lin Manuel Miranda, the creator of Hamilton has curated.  You can grab one of them at this link.

Hey Genis! Don’t do that.

I’ve represented a lot of lawyers over the years in disciplinary proceedings in Tennessee.  It is certainly fair to say that the process is slow when you want it to be fast and sometimes vice versa.

I noticed a story that the ABA/BNA Lawyers’ Manual on Professional Conduct ran with that made me realize that the disciplinary process is pretty remarkably slow in a lot of places.  Mike Frisch has written at length, and repeatedly, about his views on how slow the DC disciplinary process is, but this is about the long and winding road that is a disciplinary case against a California DUI lawyer.

The article in the Lawyers’ Manual caught my attention immediately because I remember the lawyer in question — not only because of his punny name but because I highlighted certain aspects of what he was going through at a past Ethics Roadshow — the 2014 Ethics Roadshow.  Back then there had been a recommendation that he be suspended for 90 days for, among quite a few things, improperly questioning police officers in front of the jury about prior perjury allegations.  At that time, I also mentioned that he was going to have to deal with more allegations, the pending charge against him for his stealing materials from the prosecutor on the other side of a case – and being caught on video doing so — and lying to the judge when confronted.

From the ruling itself, here is a very pithy description of the underlying facts:

In sum, a prosecutor alleged that on July 9, 2014, Genis “fiddled” with his papers during a court recess and then rearranged and hid a document from him. The prosecutor promptly reported this to the trial judge. The judge then asked Genis in a series of four consecutive questions whether he touched, moved, or hid any of the prosecutor’s documents, and each time, Genis denied the allegations. On the fourth inquiry, Genis “categorically” denied any wrongdoing. The trial judge later reviewed a videotape of the
courtroom that revealed to him that Genis did what he denied doing.

Back in June the ruling – or at least the recommended outcome – was issued suggesting that he should be suspended 60 days for the misconduct.  Interestingly, of course, the emphasis is not on the act of stealing the material – which is mentioned as being “sophomoric” – but on the lying to the Court about having done it.  (Equally interestingly, the first ruling that was appealed by the disciplinary authority was that the lawyer only be admonished rather than disciplined.)  You can read the full recommended ruling here.

In reading this new ruling, I also learned that the 90-day proposed suspension that was my primary focus during the 2014 Ethics Roadshow was ultimately reduced to only a 30-day suspension based on, at the time, Genis’s lack of any prior disciplinary history.

Now sticking with focusing on the “delay” aspect, this particular lawyer likely cares not a whit about how long this process has been pending because, as ABA/BNA also reported, he is presently serving a two-year federal prison sentence over willfully failing to pay his taxes.

As as an outsider and someone who is normally an advocate for lawyers, I find it harder to understand how it would take three years to go from start-to-finish on this one — that feels like much too long to resolve (and I’m kind of inclined to think that the 60-day suspension is still a bit light really).

Friday installment of “I beg to differ.”

It has been a long time since I have had reason to strongly disagree with the insights offered by Karen Rubin and company over at their excellent blog – The Law for Lawyers Today – but here we are again.

Karen has written a thought-provoking piece about a criminal defense lawyer with a parody Twitter account and his role in the insanity that is the delusional Pizzagate conspiracy theory that led to a man going into a pizza parlor and firing shots.  She shakes out of a belief that the lawyer in question ought to be pursued for violation of the ethics rules in Florida — specifically that state’s version of RPC 8.4(c).  I think interpreting that rule to apply to circumstances where a lawyer is engaged in parody and satire is dangerous and unwise.

Admittedly, such an interpretation is not as dangerous and unwise as riling up stupid people to do stupid violent things in aid of trying to investigate a stupid conspiracy theory which is what the Florida lawyer may have been a part of, but still dangerous and unwise.

I manage to talk a good bit about RPC 8.4(c) when I speak at seminars, and, in fact, I brought it up again this year during my tour of the state for the 2016 Ethics Roadshow.  The rule, as written, fascinates me because all reasonable lawyers have to agree it doesn’t mean 100% of what it says.  It reads: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Now Karen is absolutely correct that the rule applies to lawyers even when they are not being lawyers, but it also can’t literally mean what it says.  Otherwise, as I always have fun pointing out to large-ish crowds, it would mean that lawyers could essentially never play poker (even when doing so is legal and not illegal gambling) because we would not be allowed to bluff.  Deceit.  Also, and particularly salient for the time of year, it would mean that those of us who are parents would have to tell the truth to our children about Jolly Old St. Nick the first time we are asked/confronted because to do otherwise would be engaging in conduct involving dishonesty.

We all know that the rule could never be enforced in such a manner and that no one would ever try to discipline a lawyer for such conduct.  Thus, the rule can’t be read 100% literally.  Figuring out exactly where the line is between untenable applications of its prohibition and reasonable applications is the hard part though.

A good example of conduct it definitely was intended to address was a relatively recent situation where a law school dean got suspended for his role in fudging the law school’s statistics.  You can go back and read about that here.

Taking the position that it can be applied to a lawyer’s parody account on Twitter to me is on the wrong side of the line, and so I beg to differ with Karen on this one.

(P.S. If you are really looking for someone who truly deserves scorn for his role in pushing the ridiculously stupid conspiracy theory on the ridiculously gullible people who bought into it (and perhaps still do), this guy deserves heaps of scorn even though he’s not a lawyer.)

 

My 200th post: Living in a “post-fact” world?

So, not a milestone for some, but, for me, it feels like an achievement to have made it to my 200th post.  And because I’m a sucker for wordplay, I’ll use a “post” milestone to talk about an issue I’ve written about a good bit before but with a twist that also involves the word “post” but as a prefix.

If you’ve been paying attention at all to U.S. politics, you may have seen some discussion about how we seem to be living in a “post-fact” world and lots of accompanying criticism about how the media has played a large role in making it easy for prominent people to simply refuse to acknowledge facts and then inculcate beliefs in those who support them or identify with them that such facts are not actually facts.

Well, here’s something of an example — but in the world of legal ethics — of just how easily it is for that kind of thing to seem to happen.

So, in late October, the Montana Supreme Court put an order out for public comment about potentially adopting the new ABA Model Rule 8.4(g) addressing harassment and discrimination by lawyers in conduct related to the practice of law.  The Montana Supreme Court has floated adopting the entirety of the ABA Model Rule black-letter language such that if adopted, Montana’s 8.4(g):

would provide that it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

You can read the Montana Supreme Court order here.  The deadline for public comments is actually today and, within the last few days, there was some publicity in Montana about the proposal.

This story is what has prompted me to write.  The reporter has included a quote from a law professor at a Montana law school who stakes out the position that the rule would suppress free speech and who is quoted as saying:

“There’s a wide variety of attorneys from a wide variety of backgrounds that are opposing this proposed rule, not necessarily on faith based reasons, but on the ability to ask questions in depositions and determining who should be seated on a jury. So it’s raised concerns amongst all types of attorneys.”

But, you might say to yourself, I just read that the proposed rule, if adopted, would have a sentence that says: “This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”  And, also since you read the blog, it probably means you keep up enough with these issues to know that the ABA Model Rule, at least, has specific language in an accompanying comment even addressing peremptory challenges, but that even if Montana isn’t also looking at adopting the comments, as long as what the lawyer does in jury selection is “legitimate advocacy,” it ought to be protected.  Yet, the news article contains no push back against the law professor’s statement and not even a competing quote from someone saying the actual rule would raise no such issues.

How can that be?  Well, there is a fairly easy and revealing answer that is pertinent to a number of much larger issues going on in the world around us these days (in my opinion).  The news article, describing the rule for the public, merely says this about the content of the proposed rule:

Proposed rule 8.4 (g) states: It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

So, the news report simply omits two of the sentences of the proposed rule including the one that contradicts the law professor’s stated concerns.  Thus, regular folks would have no idea of the rest of the content of the proposed rule when reading the story and certainly no reason to question why the law professor would be willing to make claims that appear to be contrary to clear language in the rule.

Sigh.

(And, if you are in Chattanooga or Knoxville, I’ll be doing those stops on the Ethics Roadshow next week and ABA Model Rule 8.4(g) is one of the topics on the menu for discussion.  It’s not too late to register and attend if you are so inclined.)

ABA Ethics 20/20 revisions. New York adopts some; Tennessee proposal still pending.

Roy Simon, the Chair of the NY State Bar Association Committee on Standards on Attorney Conduct, was kind enough to include me on an email last week and, as a result, I learned that New York’s proposed adoption of certain aspects of the ABA Ethics 20/20 revisions was approved, effective January 1, 2017.  Back in 2015, New York adopted certain revisions to Comments to the Rules consistent with Ethics 20/20, but the proposal to change the rules themselves required Court action.  You can read the details of the revisions that were adopted in this PDF: order-adopting-black-letter-amendments-to-part-1200-eff-jan-1-2017.  As with many jurisdictions, New York has picked up the move to a black letter duty in Rule 1.6 to “make reasonable efforts” to safeguard confidential information but not adopted several of the other Ethics 20/20 black-letter revisions  For example, New York has not adopted the Ethics 20/20 revision to acknowledge in Rule 1.6 the need to disclose certain information in connection with lateral moves and mergers in order to comply with the concomitant duty to avoid conflicts under Rule 1.7.  The Comments adopted in 2015 in New York did pick up the Ethics 20/20 revisions to the Comment to Rule 1.6 on that topic, however.

The Comments adopted back in 2015 also included the new paragraphs in Rule 1.1 that are touted by many as establishing a duty of technological competence for lawyers.

I wrote back in the late part of the summer about the TBA’s petition to the Tennessee Supreme Court proposing that Tennessee adopt almost all of the ABA Ethics 20/20 revisions.  The deadline for public comments expired in November 2016, but not before our disciplinary body, the Board of Professional Responsibility, filed comments proposing a number of additional amendments to be layered upon the TBA proposal.  Several of the BPR proposals, all of which you can read here (starting at page 2 of the linked PDF), are puzzling.

The TBA filed a response/reply to the BPR’s comment arguing against the majority of the BPR proposals.  The TBA’s response is not yet up at the Court’s website, but as I was one of the signers of it, I happen to have a copy, and you can read it at this link:  petition-bpr-comment-response

This situation regarding the pending proposal is one of the 12 developments I’ll be covering, including a detailed discussion of some of the puzzling pieces of the BPR proposal, during this year’s Ethics Roadshow.

The first stop is this morning in Memphis, and I’ll be doing it again tomorrow in Nashville.

 

Shameless self promotion – 2016 Ethics Roadshow update

Big news … well, the size of the news may be subject to differing opinions, but news.

Believe it or not, this year will be the 12th year that I have had the opportunity to do the Ethics Roadshow for lawyers throughout Tennessee.  Since this is my 12th go round at doing three hours of just me talking about ethics, the theme of this year’s Roadshow will be the “12 Most Important Developments of 2016 Impacting Ethics and Lawyering.”

Those of you are in the intersecting portion of the circles on the Venn diagram of Roadshow attendees and blog readers will likely be able to predict many of the topics we end up talking about in December 2016.

Because I don’t like to be completely predictable, however, it is possible,  especially given my full-on case of Hamilaria, that I’ll end up performing a 3-hr groundbreaking musical adaptation of the Second Edition of Professional Responsibility in LitigationAfter all, why should I throw away my shot?

I don’t think the TBA has the pages up and running yet to register to attend for any of the stops, but once they do I’ll put the links up at the Seminars page of the site.  In the meantime, here are the city-specific details:

The 2016 Ethics Roadshow: More Ethical by the Dozen?

Memphis – December 6, 2016

Nashville – December 7, 2016

Jackson – December 12, 2016

Chattanooga – December 14, 2016

Knoxville – December 15, 2016

Johnson City – December 16, 2016

 

Wait for it.

The Wisdom of Ferris Bueller. The reality of Machiavelli.

Life moves pretty fast.  If you don’t stop and look around once in a while, you could miss it. – Ferris Bueller

Back in December 2015, during my Ethics Roadshow I talked a little bit about one of the items that had been rolled out for public comment by the ABA Commission on the Future of Legal Services, model regulatory objectives that might be used by jurisdictions to examine both how they regulate lawyers and how they might go about regulating others who provide legal services.  The discussion I had about this topic with audiences was way too disjointed at the time. (It is a topic that itself could have had an hour’s worth of dedicated discussion, but it was just one of many topics covered during the three hours of my presentation repeated across several cities in Tennessee.)  Earlier this week, a version of those regulatory objectives was adopted by the ABA House of Delegates after heated arguments and over significant opposition.  The ABA is now hawking Resolution 105 as a way to move the needle forward in an effort to ensure that those who provide legal services to consumers but are not lawyers are appropriately regulated.  Time will tell whether that effort will gain traction.

It was slightly less than a month ago that the news started to roll out about the planned launch of Avvo Legal Services and I wrote about it here. At the time, it was being tested in five cities.  Presumably, such testing was positive (or the outcome of the testing never really mattered) because now the news comes along that Avvo Legal Services has officially launched in 18 states.  Which states?  Well you can go read the article at the link, or you can see the list at the end of this post.

I’ve always liked the Ferris Bueller and life does move pretty fast, but another quote somehow seems more appropriate in this moment, though it comes from someone much less lovable:

[F]or there is such a gap between how one lives and how one ought to live that anyone who abandons what is done for what ought to be done learns his ruin rather than his preservation. – Niccolo Machiavelli

Oh yeah, which states has Avvo Legal Services launched in and is looking to have lawyers participate:

  • Arizona (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may: 1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service, which may include, in addition to any membership fee, a fee calculated as a percentage of legal fees earned by the lawyer to whom the service or organization has referred a matter, provided that any such percentage fee shall not exceed ten percent, and shall be used only to help defray the reasonable operating expenses of the service or organization and to fund public service activities, including the delivery of pro bono legal services. The fees paid by a client referred by such service shall not exceed the total charges that the client would have paid had no such service been involved. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority….”)
  • California (Rule 1-600 (A) “A member shall not participate in a nongovernmental program, activity, or organization furnishing, recommending, or paying for legal services, which . . . allows any third person or organization to receive directly or indirectly any part of the consideration paid to the member except as permitted by these rules, or otherwise violates the State Bar Act or these rules.”)
  • Colorado (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a layer may (1) pay the reasonable costs of communications permitted by this Rule; (2) pay the usual charges of a not-for-profit lawyer referral service or legal service organization….”)
  •  Florida (Rule 4-7.17(b) “A lawyer may not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising permitted by these rules, may pay the usual charges of a lawyer referral service, lawyer directory or other legal service organization….”)
  • Georgia (RPC 5.4(a)(5) “A lawyer or law firm shall not share legal fees with a nonlawyer, except that: . . . a lawyer may pay a referral fee to a bar-operated non-profit lawyer referral service where such fee is calculated as a percentage of legal fees earned by the lawyer to whom the service has referred a matter pursuant to Rule 7.3. Direct Contact with Prospective Clients.”)
  • Illinois (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service….”)
  • Massachusetts (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a not-for-profit lawyer referral service or legal service organization….”)
  • Maryland (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may (1) pay the reasonable cost of advertising or written communication permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service….”)
  • Michigan (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may: Michigan Rules of Professional Conduct Last Updated 2/4/2015 (i) pay the reasonable cost of advertising or communication permitted by this rule; (ii) participate in, and pay the usual charges of, a not-for-profit lawyer referral service or other legal service organization that satisfies the requirements of Rule 6.3(b)….”)
  • North Carolina (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a not-for-profit lawyer referral service that complies with Rule 7.2(d), or a prepaid or group legal services plan that complies with Rule 7.3(d)….”
  • New Jersey (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that: (1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule; … (3) a lawyer may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.”)
  • New York (RPC 7.2(a) “A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that: . . . (2) a lawyer may pay the usual and reasonable fees or dues charged by a qualified legal assistance organization or referral fees to another lawyer as permitted by Rule 1.5(g).”)
  • Ohio (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may pay any of the following: (1) the reasonable costs of advertisements or communications permitted by this rule; (2) the usual charges of a legal service plan; (3) the usual charges for a nonprofit or lawyer referral service that complies with Rule XVI of the Supreme Court Rules for the Government of the Bar of Ohio ….”)
  • Pennsylvania (RPC 7.2(c) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay: … (2)  the usual charges of a lawyer referral service or other legal service organization….”) (RPC 7.7(b) “A ‘’lawyer referral service’’ is any person, group of persons, association, organization or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers.”)
  • Texas (Rule 7.03(b) “A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm, except that a lawyer may pay reasonable fees for advertising and public relations services rendered in accordance with this Rule and may pay the usual charges of a lawyer referral service that meets the requirements of Occupational Code Title 5, Subtitle B, Chapter 952.”)
  • Virginia (7.3(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may:(1) pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1; (2) pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service ….”)
  • Washington (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may (1) pay the reasonable cost of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service….”)
  • Wisconsin (RPC 7.2(b) “A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may: (1) pay the reasonable cost of advertisements or communications permitted by this rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority….”)

Revisiting things not to do in court – Friday edition

Being in between stops for the Roadshow until next week, but still having two more to do (Wednesday in Chattanooga and Thursday in Knoxville), this will again be a bit more of a short(ish), punchy offering.

A few months ago I wrote a post about things not to do in court that discussed two incidents.  One of the incidents was the lawyer who took a selfie with his client in court after a successful jury verdict and posted it to social media.  I explained by belief that it seemed wrong for the lawyer to have been scolded at all by the court for the incident given the age-old notion that courtrooms – unless sealed via a proper protective order – are supposed to be public, open proceedings, since they are where public business gets accomplished.  I happen to think the routine imposition of such restrictions by judges is antithetical to the First Amendment right of access to court proceedings and to the ideal that what happens in the courtroom is public property.  I certainly understand that some of the rules that are in place that seek to prohibit broadcasting are premised on the notion that traditional media reporting and video broadcasting can be disruptive or a distraction to the proceedings, but in 2015 when anyone with a smart phone can unobstrusively take photos and disseminate information to the public in real time about what is going on in their courtrooms (and could even use an app like Periscope to live-stream proceedings without actually being at all disruptive) should merit revisiting a lot of the rules in place in federal courts that chill public dissemination of information about court proceedings.

I had been avoiding writing anything about this more recent Illinois federal court incident where a partner with a prominent law firm was facing a show cause order over having taken photos of evidence, and tweeting about that evidence, during a criminal trial in which he was just acting as a spectator in the courtroom.  Because the obvious ethics and lawyering angle didn’t immediately dawn on me.

But, there is at least one ethics rule worth mentioning for discussion so, with this week’s development that the lawyer in question sort of proposed his own sanction for his conduct in the form of making a charitable donation and performing some additional CLE and the court essentially agreed with it yesterday although it quintupled the amount of the proposed donation to $5,000 — I’m reversing course and writing just a few words about this.

Under the ethics rules in many jurisdictions,  including the version of RPC 3.4(c) adopted in Tennessee and in Illinois, it is not unethical for a lawyer to “knowingly disobey an obligation under the rules of a tribunal,” if done through “an open refusal based on an assertion that no valid obligation exists.”  (And, strictly speaking, although that rule does not say it is limited to a lawyer representing a client, given its title as “Fairness to Opposing Party and Counsel,” that kind of limitation is pretty strongly implied.)   Of course, this lawyer was never going to be in a position to do that because he first quickly stated he hadn’t seen the sign and then relatively quickly apologized for and tried to mitigate the repercussions of the conduct.  The Show Cause order lays out all the various levels of court rule that were involved here, starting with Federal Rule of Criminal Procedure 53 and working all the way down to the posted sign.  So there would be quite a few rules that a lawyer wanting to make such a challenge would have to claim to be openly defying.  The only other rule it seems like could be used to come after a lawyer for this kind of conduct in their role as a citizen would be RPC 8.4(d), but it seems to me the policies that impose these kind of restrictions are more prejudicial to the administration of justice than what this lawyer did.

I do wish that one of these days there will be an appropriately high-profile vehicle that serves to spur a conversation about why our profession doesn’t do more to challenge these kind of restrictions in federal courts.  Of course, that it is easy for me to say sitting here on my laptop and not in this lawyer’s shoes.  And, it’s especially easy for me to say when I’m likely to merely comply with the same sort of rules here in the federal district courts in which I practice rather than attempting to personally make any such waves.